Court of Appeal for Ontario

Date: 2018-04-19

Docket: C54289

Judges: Laskin, Trotter and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Richard Zoldi Appellant

Counsel

Lance C. Beechener and Alexander M. Ostroff, for the appellant

Shawn Porter, for the respondent

Heard: January 11, 2018

On appeal from the conviction entered by Justice Bruce G. Thomas of the Superior Court of Justice, sitting with a jury, on May 7, 2011.

Fairburn J.A.:

A. OVERVIEW

[1] Richard Zoldi and Shane Huard were charged in the first degree murder of Troy Hutchinson. The appellant discharged his counsel after the first prosecution ended in a mistrial. This led to the Crown severing the accused. Huard's trial proceeded first, followed by the appellant's trial. This appeal is from the appellant's conviction for second degree murder.

[2] The appellant advanced what are said to be four errors in the jury charge. He pursued two errors in oral argument, but focused on what he claims is an error in the charge relating to the mens rea for aiding or abetting murder. For the reasons that follow, despite an otherwise very well-organized and coherent charge, the jury was misdirected on the required state of mind for an aider or abettor to murder. As this is not an appropriate case in which to apply the curative proviso and a new trial is required, there is no need to address the other issues.

B. BACKGROUND FACTS

[3] On August 24, 2006, the appellant, Huard, and a third man tried to rob some local drug dealers. Things did not go as expected and the appellant suffered a stab wound to his shoulder.

[4] Two days later, one of Huard's neighbours left a .22 calibre Browning semi-automatic handgun at Huard's residence. When the neighbour returned to Huard's apartment later in the day, the appellant and Huard were present, but the gun was not. Shortly after denying knowledge of the gun's whereabouts, Huard and the appellant were seen leaving Huard's apartment with the appellant toting a bag in hand.

[5] Susan Sladic used to purchase drugs from the man who stabbed the appellant. She was originally charged with Hutchinson's murder, but that charge had been withdrawn by the time of trial. She testified that in the lead up to the events resulting in Hutchinson's death, the appellant pointed a handgun at her and demanded that she set up a drug deal with the man whom the appellant thought was responsible for stabbing him. Sladic knew that the drug deal was a ruse to give the appellant access to that man. When Sladic made the call, another man named Hutchinson answered the phone. Hutchinson said that he would deliver the drugs. Although Sladic informed the appellant that Hutchinson would be doing the delivery, the appellant wanted to go ahead anyway. Sladic maintained that she thought that the appellant and Huard were only going to "bust" kneecaps.

[6] The appellant, Huard, Sladic and two others drove to the meeting spot. Huard told Sladic to stay quiet and said: "You ain't seen nothin' so don't say nothin'." She saw the appellant put on a glove.

[7] Hutchinson was shot in the stomach at close range. No one saw who shot him. Numerous witnesses saw two white males at the scene of the shooting, but were able to provide only very general descriptions of the males. After a shot was heard, Hutchinson called out "murder" and fell to the ground. The men were then seen assaulting Hutchinson, going through his pockets and running away.

[8] The gun, a glove and a t-shirt were found close to the scene. The glove and t-shirt contained gunshot residue. Sladic could not identify the glove as the one she had seen the appellant place on his hand. The t-shirt contained the appellant's DNA profile. As for the gun, it matched the description given by the man who had left the gun at Huard's apartment. Not long after the shooting, the appellant told someone that they had "got in a fight with somebody, beat someone's ass".

C. ANALYSIS

(i) Trial Counsels' Positions on Aiding and Abetting

[9] Throughout the appellant's trial, the Crown (not Mr. Porter) was unwavering in the theory that the appellant was the actual shooter. Despite this position, the Crown insisted that, in addition to instructing the jury on the appellant's potential liability as the principal actor, the jury should also receive instructions on aiding and abetting as possible ways in which the appellant participated in the crime.

[10] At the outset of the pre-charge conference, the trial judge expressed some reservations about the Crown's position and asked the parties for input. Crown counsel expressed the view that because there was no direct evidence as to whether Zoldi or Huard had shot Hutchinson, the trial judge was duty bound to instruct the jury on principal actor, aiding and abetting routes to liability. As the trial Crown put it, "I think the law requires you to".

[11] Although the defence initially took the position that there was no air of reality to aiding or abetting, this position changed after some discussion during the pre-charge conference. In the end, all counsel agreed that aiding and abetting should be left for the jury's consideration. Counsel were provided with the opportunity to review the draft charge on those modes of participation. There were no objections to the instructions on aiding and abetting before, during or after the charge was delivered.

(ii) The Objection on Appeal

[12] The appellant maintains that the charge left an unconstitutional path to conviction arising from the failure to correctly instruct the jury on an aider or abettor's knowledge of the principal actor's intention for murder. Specifically, the appellant alleges that the instructions failed to impart to the jury that an aider or abettor to murder must know that the principal actor has subjective foresight of death. The appellant argues that this error was repeated on multiple occasions. He places particular emphasis on what he says was the culminating error, an incorrect answer to the jury's final question, a question that demonstrated confusion by the jury on the very point that is said to constitute reversible error.

[13] Crown counsel fairly acknowledges that the charge contains the alleged erroneous instructions. However, Crown counsel encourages the court to read the charge as a whole. Viewed in context, and against the backdrop of the entire trial, the Crown submits that the jury would have properly understood what the Crown had to prove beyond a reasonable doubt in order to establish the appellant's state of mind as an aider or abettor to murder. Alternatively, even if the jury was labouring under a misapprehension as to the correct legal standard, the case against the appellant on second degree murder was so formidable that the curative proviso should apply to uphold the conviction.

(iii) General Structure of the Charge

[14] The trial judge was faced with a difficult task in charging the jury. He had to address multiple challenging issues, including providing directions on how to approach the evidence of highly unsavoury witnesses, post-offence conduct, continuity, expert and eyewitness identification evidence. The trial judge did an impressive job at bringing together a concise, comprehensive, yet comprehensible charge. Unfortunately, the charge took on an added layer of complexity when the appellant's potential liability as an aider or abetter to the murder was placed into the mix.

[15] Section 21(1) of the Criminal Code provides for three modes of participation in a crime. Section 21(1)(a) governs principal parties: those who actually commit the crime. Sections 21(1)(b) and (c) govern aiders and abettors respectively. Those who help, through acts or omissions, or encourage others to commit crimes, may also be guilty of those crimes. Although different considerations are taken into account when assessing liability under the different modes of participation, principals, aiders, and abettors are equally culpable at law: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13.

[16] About halfway through the charge, the trial judge introduced the different modes of participation. Two different decision trees were provided to the jury to look at as the modes were discussed, the first tree dealing with principals and the second with aiders and abettors.

[17] The jury was first instructed on principal actor liability for murder, the form of liability that accorded with the Crown's theory that the appellant was the actual shooter. Under s. 229(a) of the Criminal Code, a person who commits murder as a principal actor must either (i) mean to cause death or (ii) mean to cause bodily harm knowing that it is likely to cause death, and be reckless whether death ensues.

[18] The state of mind under s. 229(a)(i) is straightforward: did the person intend to cause death? The state of mind under s. 229(a)(ii) involves a somewhat more nuanced inquiry, involving three components: intent, knowledge, and recklessness. The questions are, did the principal actor: (a) intend to cause bodily harm; (b) know that the bodily harm would likely be fatal; and (c) show recklessness as to whether the victim died: R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 45.

[19] Proof beyond a reasonable doubt of the subjective foresight of death was raised to the level of a constitutional requirement in R. v. Martineau, [1990] 2 S.C.R. 633, at p. 646. The intention under s. 229(a)(ii) must be to cause bodily harm that is so "grave and serious" that the person inflicting the harm knows that the harm will likely kill the victim: Moo, at para. 46. Requiring subjective foresight of death ensures that the principal actor's moral responsibility is commensurate to the serious stigma and life sentence attaching to a murder conviction: Martineau, at p. 646. Accordingly, the principal actor must have subjective intent to cause bodily harm and subjective knowledge that the harm is of a nature that is likely to result in death: R. v. Cooper, [1993] 1 S.C.R. 146, at p. 155. Recklessness merely involves having a deliberate disregard for the death that the appellant knows is likely to result from his actions.

[20] It is agreed that the instructions pertaining to the mens rea for the actual shooter – the principal actor – were generally correct. After instructing the jury on this mode of participation, the trial judge moved on to aiders and abettors under ss. 21(1)(b) and (c). It is here that the trial judge is said to have erroneously dropped the need for the aider or abettor's knowledge of the principal's subjective foresight of death.

(iv) The Impugned Instructions on Aiding and Abetting

[21] The instructions on aiding and abetting commenced with reference to the second decision tree. The first box on the decision tree focuses on the actus reus for aiding and abetting, often referred to as the conduct component: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 86-87. To fulfill this requirement, an aider must do or omit to do something that assists the principal in committing the offence and an abettor must encourage the principal to do so.

[22] The jurors were instructed that if they determined that the conduct component was met, then they would move on to consider the mens rea for an aider or abettor to murder, often referred to as the fault component: Maciel, at paras. 86-87. An aider or abettor must have both knowledge and intention. He or she must know that the principal actor intends to commit the offence and must intend to assist or encourage the principal actor in committing it: Briscoe, at paras. 16-17; Huard, at para. 63. Accordingly, as noted in Briscoe, at para. 18, the aider or abettor must be:

… armed with knowledge of the perpetrator's intention to commit the crime, [and act] with [the] intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed. [Italics in original, underline added.]

[23] Requiring that an aider or abettor know the principal's intention under s. 229(a)(i) or (ii), including knowledge of the subjective foresight of death under s. 229(a)(ii), ensures that murder convictions do not flow to aiders and abettors where there is diminished moral responsibility.

[24] The second box on the aiding and abetting decision tree dealt with the required mental state for this mode of participation. It posed the following problematic question:

That when ZOLDI did the act that helped or encouraged HUARD to commit the unlawful act that caused the death of the deceased, did ZOLDI:

(a) know that HUARD intended to kill the deceased, or intended to cause him bodily harm likely to result in death, and be reckless whether he died or not? … [Emphasis added.]

[25] The appellant maintains that the question is flawed because it drops reference to the need for the aider or abettor to know that the principal actor – Huard – had the constitutionally required intention for murder under s. 229(a)(ii): subjective foresight of death. More specifically, the appellant submits that the question should have emphasized Huard's foresight of death in the following way: "Know that Huard intended to kill the deceased, or intended to cause [the deceased] bodily harm that Huard knew was likely to result in death …".

[26] The accompanying jury instructions are said to have aggravated the error. Although on a couple of occasions the mens rea was correctly stated, on at least seven occasions there was no reference to the need for the appellant to know that Huard knew that the bodily harm would likely result in death. The following examples from the charge illustrate the objection on appeal:

Crown counsel must prove beyond a reasonable doubt that Richard Zoldi knew Shane Huard intended to kill Hutchinson or cause him bodily harm likely to result in death and be reckless whether death ensued and that Richard Zoldi intended to help Huard do so. …

If … you are not satisfied beyond a reasonable doubt that Richard Zoldi knew that Shane Huard intended to kill Troy Hutchinson or cause him bodily harm likely to result in death, and was reckless whether death ensued or not, and that Richard Zoldi intended to help Huard do so, you must find him not guilty of second degree murder …. [Emphasis added.]

[27] Although knowledge of Huard's intention under s. 229(a)(i) was properly described, knowledge of Huard's intention under s. 229(a)(ii) was not. While there are multiple ways in which it could have been conveyed in the charge, the jury needed to understand that in order to have the required mental state as an aider or abettor to Hutchinson's murder, the Crown had to prove beyond a reasonable doubt that the appellant: (a) knew either (i) that Huard intended to cause Hutchinson's death or (ii) that Huard meant to cause Hutchinson bodily harm that Huard knew was likely to cause Hutchinson's death and be reckless whether death ensued or not; and (b) intended to help or encourage Huard in committing Hutchinson's murder.

[28] When considering the impugned passages in isolation, Crown counsel acknowledges the error as alleged. This is a reasonable concession. By omitting reference to knowledge of Huard's foresight of death, the challenged instructions conveyed to the jury that the required state of mind as an aider or abettor to murder could be based upon knowledge that Huard intended to cause bodily harm that would be objectively likely to result in Hutchinson's death.

[29] This impugned language tracks almost exactly the impugned language in R. v. McIntyre, 2012 ONCA 356, 291 O.A.C. 359, where this court ordered a new trial. As McIntyre was decided after the jury charge was given in this case, the trial judge did not have the benefit of this court's reasoning. As noted in McIntyre, at para. 20, the error in the mens rea component of aiding and abetting "laid out a roadmap to convict the appellant of aiding or abetting [the principal] to murder the deceased that did not require the jury to find that [the principal] had the subjective intention required for murder."

(v) Do the Erroneous Instructions Constitute Misdirection?

[30] Although Crown counsel does not shirk from the flawed aspects of the charge relating to the state of mind for an aider or abettor to murder, and acknowledges the significant symmetry between the instructions in McIntyre and this case, he maintains that McIntyre is distinguishable.

[31] First, Crown counsel argues that the flawed McIntyre instruction is different in that the jury was instructed that the Crown must prove that the appellant knew that the principal intended to "cause [the deceased] bodily harm that would likely kill [the deceased] …". Crown counsel maintains that the instruction in this case, that the appellant had to know that Huard intended to "cause [the deceased] bodily harm likely to result in death …", uses a more active voice. Although there is a slight difference between how the mens rea for an aider or abettor was conveyed in McIntyre and this case, neither instruction included reference to the requirement that the party must know about the principal's actual foresight of death.

[32] Second, Crown counsel makes the important observation that the McIntyre jury was only instructed on aiding and abetting. In contrast to McIntyre, the jury in this case also received instructions relating to principal actor liability. Not only were those instructions largely correct, but, the trial judge told the jury that they should think about those instructions "whenever" he spoke of the "mental element or intention necessary to commit murder". Accordingly, Crown counsel maintains that the impact of the impugned aiding and abetting instructions was softened by the correct mens rea instructions given in the context of discussing principal actor liability.

[33] Although different parts of a charge may "convey different descriptions of the requirements of s. 229(a)(ii)", the ultimate question is whether, having regard to the charge as a whole, the jury would have understood the correct legal test to apply: R. v. Rodgerson, 2014 ONCA 366, 309 C.C.C. (3d) 535, at paras. 22-26. See also: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 30-31. In other words, not every misinstruction amounts to a misdirection.

[34] To determine the effect of a misinstruction, the charge must be considered as a whole and against the contextual backdrop of the entire trial. Having engaged in this exercise, I do not agree that the jury would have understood the correct legal principles to apply in considering whether the appellant was an aider or abettor to murder. I say this for three reasons: (a) the structure of the charge; (b) the definition given to recklessness; and (c) the answer given to the jury's final question.

(a) The Structure of the Charge

[35] The structure of the charge discouraged the jury from considering the legal principles applicable to principal actors, when considering aiders and abettors.

[36] The trial judge delivered his instructions within very specific participation silos. The jury was instructed that two decision trees were being provided, one for principals and the other for aiders and abettors. The jury was told that this was being done because "[t]he analysis is different". With reference to the applicable decision tree, the trial judge then delivered his instructions on principal actor liability, followed by aiding and abetting liability.

[37] Given the structure of the charge, I am not satisfied that the jury would have transferred the mens rea for a principal actor into their deliberations regarding the mental state for an aider or abettor to murder. To be clear, the trial judge was right to tell the jury that the analysis between the modes of participation was different. Having had the required different analysis highlighted for them, though, the jury may have thought that, in the context of aiding and abetting, the absence of knowledge of the principal's subjective foresight of death was by design.

(b) The Definition Provided for "Reckless Whether Death Ensues or Not"

[38] Even if the jury thought that the instruction on the mental element for a principal was transportable to the aiding and abetting context, there was a misstep in the definition provided for the words "reckless whether death ensues or not" in s. 229(a)(ii). This definitional misstep served to aggravate the deficiency in the mental element for aiding and abetting.

[39] Recklessness under s. 229(a)(ii) was only defined once in the charge: "[f]or your purposes reckless means that Richard Zoldi saw the risk that Troy Hutchinson could die from the injury to be inflicted upon him but he went ahead anyway and took the chance" (emphasis added). The parties agree that this definition is incorrect.

[40] The recklessness component within s. 229(a)(ii) requires proof of knowledge that death will likely result and a deliberate disregard for this consequence by going ahead anyway: R. v. MacDonald, 2008 ONCA 572, 236 C.C.C. (3d) 269, at para. 46, 47, 49; Moo, at paras. 63-65. Defining the recklessness component within s. 229(a)(ii) as it was in this case, as a risk that death could ensue, creates a danger that the jury may proceed on the basis of something less than subjective foresight of death: MacDonald, at para. 46.

[41] This erroneous instruction is not uncommon and iterations of it have been given in various charges: R. v. Czibulka, 189 C.C.C. (3d) 199, at paras. 66-68; Moo, at paras. 54-55, 63-65; R. v. Patterson, 205 C.C.C. (3d) 171, at paras. 36, 52. Standing alone, the error has rarely proved fatal because it is typically accompanied by a proper instruction relating to the need for subjective foresight of death. When accompanied by a proper instruction relating to the intention and knowledge components of s. 229(a)(ii) – intention to cause bodily harm knowing that the bodily harm will likely be fatal – there is less risk that a jury will be misled by recklessness being erroneously defined.

[42] Once the Crown establishes the principal's intention to cause such grave and serious bodily harm that he knows it is likely to result in death, recklessness follows as almost a matter of course: R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1088. See also: Cooper, at p. 154-155; Rodgerson, at para. 23; Moo, at para. 63. This is why being "reckless whether death ensues or not" is often referred to as an "afterthought".

[43] If the misstep in the definition of recklessness was the only difficulty in relation to the instructions regarding the required mental state for murder, it may well have been inconsequential to the result of this case. The difficulty is that, in the context of aiding and abetting, the error in the definition of recklessness was not lessened by a correct instruction regarding the appellant's need to know Huard's subjective foresight of death. Instead the definitional error only served to compound the deficiency in the instructions.

(c) The Jury's Final Question

[44] The final jury question, and answer provided, also sheds light on this issue.

[45] The jury deliberated for almost two full days. In response to the first number of questions, the jury received correct instructions about the mens rea for a principal actor. In their final question, question five, the jury asked about decision tree two – the aiding and abetting tree. As the jury had been earlier instructed that they should only consider decision tree two if they had failed to reach a unanimous verdict of guilty as a principal to first degree murder, the question conveyed that at least one juror had a reasonable doubt that the appellant was the shooter in a first degree murder.

[46] The jury's question was directed at boxes two and three on decision tree two, the boxes pertaining to state of mind and planning and deliberation. The jury asked:

Tree 2

Box 2 v.s. Box 3

• what is the difference b/w knew Huard intended to kill/cause bodily harm likely to result in death

and

• knew Huard intended to commit planned & deliberate murder

is this a distinction b/w the 2 definitions of what constitutes murder?

ie Intent to kill

vs.

intent to cause bodily harm …

or is it a distinction b/w planned & deliberate murder?

[47] Notably, the question fails to refer to the need for Huard's subjective foresight of death: "what is the difference b/w knew Huard intended to kill/ cause bodily harm likely to result in death", reinforcing the view that the jury was very possibly, if not likely, deliberating under a misapprehension about whether the appellant's knowledge of Huard's subjective foresight of death was required.

[48] The trial judge started answering the question by repeating the content of box two on the aiding and abetting decision tree, which erroneous content has been previously discussed. Then, the jury was instructed as follows:

If you find that in fact Richard Zoldi when he aided or abetted Shane Huard to cause the death of Troy Hutchinson knew that Huard intended to kill the deceased or intended to cause him that serious bodily harm with recklessness and knew and intended to help Shane Huard do that, then Richard Zoldi would be guilty of second degree murder.

[instruction on planning and deliberation]

So let me back up a little bit and tell you again this. If, when Richard Zoldi did the act that helped or encouraged Shane Huard to commit the unlawful act that caused the death of the deceased, Richard Zoldi either did not know that Huard intended to kill the deceased or cause him that serious bodily [harm] or did not intend to help or encourage Huard to do so, he's guilty of manslaughter and not murder. [Emphasis added.]

[49] This answer allowed the jury to convict the appellant as an aider or abettor to murder, without a finding that the appellant knew that Huard had the subjective intention for murder. This difficulty was magnified by virtue of the earlier instruction provided for the meaning of recklessness.

[50] Jury questions demonstrate that the jury is struggling with something and that they require direction. The answer to such questions must provide correct legal assistance. As noted by Cory J. in R. v. S.(W.D.), [1994] 3 S.C.R. 521, at p. 530: "The jury has said in effect, on this issue there is confusion, please help us. That help must be provided." See also: R. v. Austin, 214 C.C.C. (3d) 38, at para. 15.

[51] The jury was demonstrating some confusion. They needed assistance. Unfortunately, the answer served to repeat the error that had already been repeated on multiple occasions in the charge. In the end, read in the context of the entire charge, I am not satisfied that the jury properly understood the knowledge component of the mental element for an aider or abettor to murder.

(vi) The Curative Proviso

[52] Crown counsel maintains that, even if this court concludes that the jury instructions were in error, the conviction should be upheld under the curative proviso, s. 686(1)(b)(iii) of the Criminal Code, which states that an appeal may be dismissed when, notwithstanding an error of law, "the court is of the opinion that … no substantial wrong or miscarriage of justice has occurred".

[53] The curative proviso applies where errors are so minor, harmless or insignificant, that they could not have affected the verdict. Equally, convictions may be upheld where, while serious, the errors do not give rise to a miscarriage of justice because the case against the accused is so overwhelming that a conviction would have been inevitable: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 35-36; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 42. Crown counsel draws on the second category for the application of the curative proviso, claiming that this was an overwhelming case of second-degree murder as a principal party and, accordingly, that the conviction should be maintained.

[54] I accept that the case against the appellant as the shooter was a strong one. The appellant had the motive; he asked for the meeting to take place (albeit with the man who had stabbed him two days earlier); the appellant was carrying the bag that may have contained the gun when he and Huard left Huard's apartment; the appellant pointed a gun at Sladic; his DNA was found on the t-shirt close to where Hutchinson was shot, a t-shirt that also had gunshot residue on it. And, if the appellant was the shooter, then it seems self-evident that when he shot Hutchinson at close range in the stomach, he had the intention for murder, specifically, the intention to kill.

[55] The difficulty with applying the curative proviso on the theory of principal liability, though, is that this is one of those rare cases where we know that the jury actually considered the appellant's liability as an aider or abettor. The jury was instructed not to consider aiding and abetting unless there was a lack of unanimity regarding the appellant as a principal to the first degree murder of Hutchinson. The fifth and last question that the jury asked before convicting was rooted directly in aiding and abetting, meaning that at least one juror was not satisfied beyond a reasonable doubt that the appellant was the shooter in a planned and deliberate murder.

[56] Crown counsel attempts to blunt the force of question five. He does so by reminding the court that the jury was instructed that anything short of unanimity on first degree murder required that they consider aiding and abetting. Based upon this instruction, Crown counsel maintains that the jury may have found the appellant guilty as a principal to second degree murder and only moved over to consider aiding and abetting because one or more jurors had a reasonable doubt about him being a principal to a planned and deliberate first degree murder.

[57] The fact is that we do not know why the jury moved on to consider aiding and abetting. Bearing in mind the question asked, it cannot be said with any level of confidence that the jury only moved on to decision tree two because a juror or jurors had a reasonable doubt on planning and deliberation. Question five is simply too nebulous in nature. It could mean that the jury was having difficulty with the mental element for an aider or abettor, or difficulty with planning and deliberation for an aider or abettor, or both. It would be at best speculative to try and figure out why the jury was considering aiding and abetting.

[58] Staying with what is certain, if the jury followed the trial judge's instructions, an assumption that I proceed upon, they considered the appellant's liability as an aider or abettor. In these circumstances, it cannot be concluded that a conviction was inevitable.

[59] While it is a reasonable inference that, even as an aider or abettor, the appellant knew a gun was being brought to the scene, this would not necessarily mean that he knew Huard had the intention to kill or cause bodily harm that Huard knew was likely to result in death. Nor is it clear that, as an aider or abettor, the appellant intended to help or encourage a murder. In this regard, I note Sladic's evidence about her conversation with the appellant prior to attending at the scene. He only made mention of "kneecaps". She understood the appellant to mean that he was "gonna bust [Hutchinson's] kneecaps". This evidence could have raised a doubt about what the appellant knew was going to occur and what he intended to happen. If Huard was the shooter, Huard's intention for murder could have been formed quickly, after arrival at the scene and without the appellant's knowledge.

[60] I am not satisfied that the case against the appellant as an aider or abettor was so overwhelming that any other verdict was impossible to obtain: Van, at para. 34.

[61] As for the absence of an objection to the charge, although it demonstrates a failure to give the trial judge the assistance that he and the administration of justice deserved, it does not mean that the error played little to no role in the resolution of the trial. Nor can the failure to object be seen as a strategic decision on the part of counsel. In the circumstances of this case, given the nature of the erroneous instruction, the failure to object does not inform the result.

[62] This is not an appropriate case for the application of the curative proviso.

D. CONCLUSION

[63] I would grant the appeal, quash the conviction for second degree murder, and, as the appellant was acquitted of first degree murder, and that acquittal was not appealed, order a new trial on second degree murder.

Released: April 19, 2018

"Fairburn J.A."

"I agree John Laskin J.A."

"I agree G.T. Trotter J.A."

Footnotes

[1] R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469 – Huard was convicted of first degree murder.

[2] The reference to "generally correct" relates to a misstep in the definition for recklessness. The impact of this erroneous definition will be discussed later.

[3] The appropriateness of this instruction was not raised on appeal.